28 U.S.C. § 1292(b) Certification Standard

From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.):

It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

When considering certification, district courts must carefully evaluate whether each of the above conditions [is] met. Courts place particular weight on the last of these three factors: whether immediate appeal will materially advance the ultimate termination of the litigation. "An immediate appeal is considered to advance the ultimate termination of the litigation if that 'appeal promises to advance the time for trial or to shorten the time required for trial.'" The second element, which is at issue here as well, is met when "(1) there is conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression for the Second Circuit." It is not sufficient to show that the existing case law is unclear or not in accord, or that the parties strongly disagree on an issue. "A mere claim that a district court's decision was incorrect does not suffice to establish substantial ground for a difference of opinion."

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